B.K v K.M and Another (6027/2023) [2023] ZAWCHC 306 (24 November 2023)

B.K v K.M and Another (6027/2023) [2023] ZAWCHC 306 (24 November 2023)

The court held that the co-ownership of the property between the applicant and first respondent is bound by the terms of their divorce agreement, which was entered into post-divorce and endorsed by the Family Advocate. The agreement's manifest purpose is to provide stable accommodation for the children, with both parties contributing to the property's expenses and co-owning the property until the children no longer require such accommodation. The extrinsic relationship created by the divorce agreement persists, and thus the co-ownership remains bound. The actio communi dividundo is not available to the applicant while this relationship subsists. The applicant is not left without remedy,...

Citation
[2023] ZAWCHC 306
Parties
Applicant: B[...] K[...]; Respondent: K[...] M[...]; Respondent: THE STANDARD BANK OF SOUTH AFRICA
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 November 2023
Case Number
6027/2023
Procedural Posture
Urgent Application / Application for Termination of Co Ownership of Immovable Property Under Actio Communi Dividundo
Outcome
Application dismissed with costs awarded to the first respondent.
Judges
Jamie
Legal Topics
Co Ownership, Actio Communi Dividundo, Divorce Settlement, Bound Co Ownership, Maintenance Obligations
Family and Children Land and Property Co Ownership Actio Communi Dividundo Divorce Settlement Bound Co Ownership Maintenance Obligations

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

B[...] K[...]

Applicant

K[...] M[...]

Respondent

THE STANDARD BANK OF SOUTH AFRICA

Respondent

Procedural Posture

Urgent Application / Application for Termination of Co Ownership of Immovable Property Under Actio Communi Dividundo

Legal Issues

  1. 1 Whether the applicant is entitled to terminate co-ownership of the property under actio communi dividundo.
  2. 2 Whether the divorce agreement between the parties constitutes bound co-ownership, precluding termination by actio communi dividundo.
  3. 3 Whether the applicant has any remedy to end the co-ownership arrangement.

Ratio Decidendi

The court held that the co-ownership of the property between the applicant and first respondent is bound by the terms of their divorce agreement, which was entered into post-divorce and endorsed by the Family Advocate. The agreement's manifest purpose is to provide stable accommodation for the children, with both parties contributing to the property's expenses and co-owning the property until the children no longer require such accommodation. The extrinsic relationship created by the divorce agreement persists, and thus the co-ownership remains bound. The actio communi dividundo is not available to the applicant while this relationship subsists. The applicant is not left without remedy,...

Court Disposition

Application dismissed with costs awarded to the first respondent.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the first respondent’s costs.